Bonser v UK Coal Mining Ltd

J U D G M E N T

1. LORD PHILLIPS, MR: L ord Justice Ward will give the first judgment.

2. LORD JUSTICE WARD: This is a sad case. On 23 December 2002 Mrs Christine Bonser succeeded before His Honour Judge Moore in the Sheffield County Court in establishing her claim for damages against her former employers, RJB Mining (UK) Limited. She recovered the sum of £38,056.10. Those damages were awarded to her for the psychiatric injury, colloquially called "stress", which she suffered in the course of that employment.

3. The law on this subject has recently received clarification from the Court of Appeal in a series of cases, the lead case being Hatton v Sutherland [2002] 2 All ER 1. That case was at the forefront of the judge's mind. He read extensively from the headnote and parts of the relevant passages in the judgment, but it bears some repetition.

4. In that case the Court of Appeal made it plain that this particular cause of action, being a cause of action for damages for psychiatric injury, stands in a different position from other cases where physical injury is sustained. The crucial question is inevitably foreseeability. The Court of Appeal expressed in paragraph 25 of that judgment the single test:

"Whether a harmful reaction to the pressures of the workplace is reasonably foreseeable in the individual employee concerned. Such a reaction will have two components: (1) an injury to health; which (2) is attributable to stress at work."

5. A number of factors will help to determine what the reasonable employer should have foreseen. One, which is important for the respondent, Mrs Bonser, is given in paragraph 26 of that judgment:

"It will be easier to conclude that harm is foreseeable if the employer is putting pressure upon the individual employee which is in all the circumstances of the case unreasonable."

But, as the court pointed out, important though that may be, more important are the signs from the employee. The court warned how necessary it was to distinguish between:

" . . . signs of stress and signs of impending harm to health. Stress is merely the mechanism which may but usually does not lead to damage to health."

In paragraph 29 it was observed:

"Unless he [the employer] knows of some particular problem or vulnerability, an employer is usually entitled to assume that his employee is up to the normal pressures of the job."

6. When dealing with breach of duty, the court observed that, in many cases, the fact that the employer has a counselling service may be conclusive. Paragraph 33 of the judgment stated:

"As we have already said, an employer who tries to balance all those interests by offering confidential help to employees who fear that they may be suffering harmful levels of stress is unlikely to be found in breach of duty: except where he has been placing totally unreasonable demands upon an individual in circumstances where the risk of harm was clear."

7. The key passage in the judgment for the purposes of this case is that summarised in proposition 7:

"To trigger a duty to take steps, the indications of impending harm to health arising from stress at work must be plain enough for any reasonable employer to realise that he should do something about it."

There was a reference to paragraph 31 where the Court of Appeal emphasised this point:

"But in view of the many difficulties of knowing when and why a particular person will go over the edge from pressure to stress and from stress to injury to health, the indications must be plain enough for any reasonable employer to realise that he should do something about it."

8. In this case there has been no sustained challenge to any of the principles thus established by the court and the judge was fully and properly directed to them. He accordingly approached the case in this way. He had before him a married woman who is now 50 years old. She commenced this employment in January 1995. It terminated as a result of the breakdown she suffered in her health in May 1998. She was a conscientious, hardworking and skilled person. She had worked well for some 20 years in her previous employment in the British Coal Industry but was made redundant. When the appellant mining company took over some of the licences and leases of the old British Coal Authority, there was extra work and they engaged Mrs Bonser. They took up references which revealed, as the judge recorded in paragraph 11, that:

"Christine would not be particularly good in a highly stressful environment but she is good at dealing with IT users, training and communication."

Based on that favourable reference as to her skills, she was officially appointed as the Technical Support and Training Manager. That involved her in having to deal with the technical problems of the computer system operated by the appellants, and a second area of setting up and training new employees. In time a third area of responsibility was given to her (uniquely in the department) for the installation of new computer systems, the project element of the job.

9. The respondent is, and was, a very hard working lady. She regularly worked beyond the contractual hours which she was required to fulfil. She thought about her job in such idle moments as she had at home. It was said of her that she was conscientious to a fault.

10. Sadly, we now know that Mrs Bonser is saddled with some emotional vulnerability. In 1989 in her previous employment, she suffered from depression which led to her being off work for five months because of a perceived deception practised upon her in a property purchase by a fellow employee. She also suffered from severe pre-menstrual stress which required significant hormone replacement therapy. Her husband was emotionally vulnerable and had had to give up his work. That was an added pressure upon her.

11. So far as her claim is concerned, it was her case, put by Mr Robinson, who appeared before the judge and who has appeared before us, that, looking at the chronology, attention should be focused on the period beginning in mid-1996. It was suggested that she was subjected to an ever increasing workload by an overbearing superior, Mr Martin Altounyan, who ignored the increasing stress levels to which she was subjected. Eventually, by the spring of 1997, she had suffered a definable injury to her health which led to her having to give up work in April. That eventually to her dismissal.

12. It appears, upon examination of the way the case has been argued, that the main thrust of her complaint was that, by the time she suffered that breakdown in February 1997, there was still time for remedial steps to be taken by her employer to avert the full disaster which subsequently afflicted her. That case foundered because the judge accepted the finding of the defendant's psychiatrist, who was one of the experts called to assist him. He found in the conclusion of his judgment in paragraph 61 as follows:

"Two things are now clear to me, and I so find. The reasonable man in McFee's [the managing director's] position would probably have done what Mcfee did. Even if he had reacted differently, it is clear from Dr Holden's evidence, which I accept, that by December 1996 intervention would have achieved almost nothing. Into 1997, on Dr Holden's evidence, which I accept, the dye was cast, although it was not until February that the open manifestation of her condition made it abundantly clear to the whole world that she was suffering anxiety and stress."

Putting that in its context, the judge found that by the time her illness was manifest, it was too late to take any steps to remedy her difficulty. Nevertheless, he found in her favour. In summary, he found that the origin of her difficulties could be traced back to August 1996 when there was time for the pressure to be eased, the result of which would have delayed the onset of her illness by a year. He awarded her the general and special damages for that acceleration of one year.

13. I must now analyse how the judge arrived at that conclusion. Trouble at work had begun in the summer of 1996. It led to a meeting which was held, principally, by her immediate superior, Mr Barton, and his superior, Mr Altounyan. The minute of that meeting recorded the concern registered by Mr Altounyan that:

"agreed assignments and time scales were not being met nor fed back."

14. The judge placed some emphasis upon that. The minute then recorded that:

"It was agreed by Mr Altounyan that all requests for project work, meetings etc would be channelled through Mr Barton. This would ensure that the support resource was properly controlled and allocated."

The minute concluded by Mr Altounyan stressing the importance of team work and the achievement of agreed deadlines. He suggested that:

"In the future individuals' performance will be primarily judged by these objectives."

The judge seems to have placed upon that minute the emphasis that employees were being judged by their attaining the objectives set for them which put pressure upon them. I am not sure that really was the effect of the minute which, as I read it, was designed to improve general performance levels to achieve deadlines for the better performance of the work. Undoubtedly there was, as Mr Barton perceived it, an element within the agreement that he would have some control over the allocation of work between the six members who formed the support and training team.

15. The judge found in paragraph 20 of his judgment that Mr Barton was bypassed. That for him meant that the intended safeguard to avoid overwork was disregarded. He said:

"Barton knew it put pressure on the team, but his complaints, which I find he made, fell on the deaf ears of Mr Altounyan or the already bombarded ears of Mr Mcfee and were not taken seriously."

16. The judge went on to express his view about the state of affairs by the summer of 1996. He concluded in paragraph 25 that he was satisfied that:

"Mr Altounyan in the summer of 1996 was acting contrary to the role of a reasonable employer in these respects."

As I read the judgment, those respects were in the failure to implement the work allocation agreed in the minute and, secondly, the expansion of the project work. The judge went on to find that:

"His actions were in breach of a reasonable duty of care. His demands were excessive. It was reasonably foreseeable that if that approach continued there could be repercussions in the form of members of the team not being able to cope."

In paragraph 40 of his judgment he said of Mr Altounyan:

"He was driven by deadlines. He seems, and I find as a fact, not to have been the best organiser and planner. He failed unreasonably to consider the possible repercussions, which were reasonably foreseeable."

17. As I understand his judgment to this point, the repercussions were the result of the members of a team not being able to cope with the work being thrust upon them. That is not a finding that the members of the team were not able to cope because they were on the point of imminent breakdown in their health. As I understand it, this was a straw in the wind showing that the team was being hard worked.

18. The next and important event took place in August. Mrs Bonser was feeling in need of a break. One has much sympathy for her feeling that; by all accounts she was working extremely hard. A week before she was due to take her week's holiday, Mr Altounyan announced, which the judge found was unreasonable for the short notice he gave her, that she had to complete a project which, on his own estimate, entailed a further 40 hours of work. This had an important effect on Mrs Bonser. We do not have the witness statements before us, nor do we have a transcript of the evidence. The judge accepted her evidence and Mr Barton's evidence, the effect of which, so far as she was concerned, was that she met Mr Barton she started to cry, she told him how exhausted she was and how she felt her holiday was under threat. The judge accepted that that was a legitimate impression for the respondent to have, but not that it had been expressly uttered as a threat by Mr Altounyan. She complained that she was being used to overcome his problems and that it was causing her work load to increase.

19. Mr Barton's account of the meeting is not dissimilar. She complained of being under great pressure, that she was very upset, "her face was like thunder". She did not know how she would find the time to do the extra work before her holiday. She felt under a real threat because her much anticipated break was in danger, and she was in tears.

20. The judge made this finding about that event in paragraph 33:

"As at the second week of August 1996, it seems to me and I so find, that it is reasonably foreseeable that if he [Mr Altounyan] continues to behave like that, somebody is going to crack. Bearing in mind that the Claimant had three disciplines and the rest had two, that she was a woman and the rest men, I would expect the reasonable man to have said: 'If this continues she will crack up'."

That is one of the central findings in the case. The judge recounted her struggling and being in tears. He recorded how she had seen her general practitioner who noted that she had "work problems ++", but which he attributed mainly to her pre-menstrual stress. The judge found:

"It seems clear to me, and I so find, that August 1996 was the start of the aggravation of the Claimant's pre-existing condition."

He went on to find in paragraph 38:

" . . . that if Mr Mcfee had known the real position, he would have taken firm steps to deal with Mr Altounyan, and had this happened, the Claimant's symptoms would have calmed down after her leave and she would not have suffered her relapse for at least a year after she in fact suffered it."

21. The judge's judgment was summarised in paragraphs 46 and 47 as follows:

"46. Throughout the autumn of 1996, it is clear on the evidence of Dr Holden, which I accept, that the Claimant was getting worse, in the sense that the aggravation of her pre-existing condition was increasing. His view was, and I so find, that as 1996 drew on, it was actually becoming too late to stop it. By February 1997 she was clinically ill with, I find on the medical evidence, the depressive disorder described by Dr Holden. Intervention in February was too late, in his opinion, even if her work schedule had been honoured by Mr Altounyan. Intervention before December 1996 might have achieved, according to Dr Holden, which I accept, a partial remission on a sliding scale. That is, the earlier intervention back before the end of 1996, back through the autumnal months, the longer would have been the time before the final breakdown between six and nine months after her actual breakdown of the 8 April 1997.

47. Drs Holden and Goodhead differed on this. I listened with care, read their reports, including their joint report, and asked my own questions. Standing back and looking at the whole case, I am satisfied on balance of probabilities as follows.

1. What Mr Altounyan was doing through the mid-summer months of 1996 was not the 'normal pressures of work', to use the Court of Appeal's expression in Hatton v Sutherland.

2. Although Mr McFee did not know it, in fact the Claimant was having to work much harder than he thought and in three separate but competing disciplines.

3. Mr Altounyan's approach, combining deadlines with assessment of the employees' performance, effectively forced the Claimant to pack into an already long working week extra and often unexpected work.

4. For the reasons given already, it was the Claimant who was reasonably foreseeably the most likely to crack yet he continued to drive her. He was not cruel but he was insensitive and unthinking, cavalier may be the best word.

5. His conduct amounted to a breach of the duty of care, for which the Defendants are vicariously liable.

6. As Dr Holden told me in re-examination, and I accept, had there been some intervention in August 1996, then it would have made a difference.

7. Distilling all the medical evidence, it seems to me likely that had the regime changed upon the Claimant's return from leave, then she would not have had what was effectively a nervous breakdown in April 1997. On the other hand, the pressures on her were immense, over and above those of her work; they would have got no better. It seems to me inevitable that sooner or later she would have been overborne by them. I cannot overlook her counsel's argument that whenever she had gone off work before it was always because of external fault, never because of her own inner weaknesses."

22. In summary the judge found that it was the claimant who was reasonably foreseeably the most likely to crack, but her employer continued to drive her. He found on the evidence given to him by Dr Holden that, had there been some intervention at that time, it would have made the difference of a year. There is no reason to doubt that he was entitled so to find. It must follow that if it was too late in December, there would have been a time earlier than December when it was not too late. He was accepting that August was not too late, which seems to me to be fully in line with the unhappy events.

23. Miss Foster, who appears for the appellant, was given permission to launch this appeal by Auld LJ. She attacks the judgment, first on the basis that, the main case having failed, there was nothing left upon which the judge could hang the judgment. I reject that submission. The judge was entitled to find, if the evidence justified the finding, that reasonable steps could have been taken in August. But that finding depended upon the judge correctly being able to determine that in August it was, as required by Hatton, reasonably foreseeable that this lady was not simply under the stress of over work, but, more relevantly, was at risk of a breakdown in her health.

24. The judge had evidence upon which he could place some reliance that she was being put under great pressure of work. But, in my judgment, he had to go further than that and to find, as the court expressed in proposition 7 in Hatton, that there was a sufficient indication of impending harm to health arising from stress at work, which was plain enough for any reasonable employer to have realised, so as to trigger a duty to do something about it.

25. I said this was a sad case because here we have a very hard working, conscientious lady who was, in a sense, the victim of her own good conscience. She did what was required of her but she did not manifest by her conduct, or by complaint, anything which in my judgment sufficiently put her employer on notice that she was vulnerable to imminent risk of injury to her health. The only visible sign was of her being tearful and upset on that single occasion in August.

26. When one looks objectively at that event, and bears in mind that she had booked a holiday which she felt was under threat of being cancelled or reduced, it is not surprising that she should have been reduced to some angry recrimination and to some genuine tears of distress at the unfairness of what was being thrust upon her.

27. That degree of understandable upset and distress alone does not, however, in my judgment, impose upon a reasonable employer a need to take steps to avert an imminent psychiatric breakdown. I fear the judge fell into error in coming to the conclusion that it was reasonably foreseeable that pressure would cause her to crack. He did not express his conclusion in paragraph 33 as happily as he might have done. There is probably no justification for drawing a distinction between the claimant, a woman with responsibility, and the other male members of the team. More importantly, for my purpose, it is the inference that the judge drew that from that event, viz, that it was reasonably foreseeable that she would crack, which is the error into which the judge fell. That event did not, in my judgment, sufficiently foretell the breakdown that was to occur in February. To the knowledge of her employer she may have become vulnerable to the stress of over-work but not of psychiatric breakdown. There was, in those circumstances, no foresight on the part of the employer which compelled reasonable steps to be taken to avert the threat of that breakdown.

28. I reach that conclusion with considerable misgiving. The judge heard this case over a period of nine days. I am acutely conscious that he was in a unique position of seeing the major protagonists as they gave their evidence. He undoubtedly formed a very adverse view indeed of Mr Altounyan, who was not always frank and whose attitude in giving his evidence and in treating those beneath him was, no doubt, justly condemned as cavalier. It does not, unhappily, mean that Mrs Bonser meets the high threshold which this court has set in Hatton for success in this cause of action for damages for psychiatric illness caused by stress at work.

29. Regrettably, in my judgment, the appeal must be allowed and the judgment set aside.

30. LORD JUSTICE SIMON BROWN: Claims for damages for psychiatric illness caused by stress at work are presently governed by the principles established by this court in Hatton v Sutherland [2002] 2 All ER 1. Crucial to the success of such a claim is a sustainable finding of the foreseeability of a claimant's illness. It is not enough for employers to have foreseen stress; it must be foreseen that illness would follow.

31. Overwork of itself is likely to lead to stress. It is altogether less likely to lead to the breakdown of the stressed employee's health. For that to be foreseen, the claimant will generally need to establish, not only that the employers knew that he or she was being overworked, but, in addition, one or other of the following circumstances: either (i) that the employers knew that the individual employee was, for some reason, particularly vulnerable to stress induced illness; or (ii) that the claimant was manifesting clear signs of some impending harm to health before eventually illness followed.

32. It was necessary in the present case for the claimant to establish that the appellant employers should have foreseen the risk of injury to her health before December 1996. By that date, on the agreed medical evidence, it would in any event have been too late to avert the risk. Her difficulty, fatal as it seems to me to her success in the claim, is that she could prove nothing more than the foreseeability of stress through overwork. The appellant employers, by common consent, knew nothing of her particular vulnerability; nor is it clear, prior to December 1996, did the claimant manifest signs of impending breakdown.

33. The judge concluded not merely that the respondent was over worked, as undoubtedly she was, but, in addition, that her employers should have recognised (paragraph 33 of the judgment):

"If this continues she will crack up."

That paragraph is at the core of his findings in the action.

34. To my mind that was not a conclusion that the judge was entitled to reach. Had the respondent not in fact been particularly vulnerable to stress induced health breakdown, there is no reason to think that she would actually have succumbed to suffering it. The employers knew nothing of that vulnerability. In my judgment they were not, therefore, liable for the breakdown when it came.

35. Sharing my Lord's considerable regret, I, too, conclude that this appeal should be allowed.

36. LORD PHILLIPS, MR: An employer will be in breach of duty to an employee if the employer subjects the employee to severe pressure of work in circumstances where the employer knows, or ought reasonably to foresee, that this is likely to cause the employee to suffer some form of breakdown which results in psychiatric injury. Happily, most employees are sufficiently robust to withstand the stress of a heavy work load. Thus, it is normally necessary to demonstrate, before breach of duty can be established, that the employer had particular reason to apprehend the danger that such injury would be caused to the individual employee.

37. We now know that, when Mrs Bonser took employment with the appellants, she had a pre-existing emotional vulnerability for the reasons set out in paragraph 4 of the judgment. This was not, however, apparent to her employers. As the judge found, her demeanour at the material time was one of helpful compliance; she was highly regarded, she prioritised her work, she worked harder and longer rather than refuse work.

38. The basis upon which the judge concluded that injury to Mrs Bonser should have been foreseen, was essentially that:

(1) in the early part of 1996, there was a meeting between Mr Barton and Mr Altounyan at which a scheme was agreed which would provide an intended "safeguard to avoid over work" (see paragraph 20 of the judgment) for members of the team of which Mrs Bonser was one;

(2) the scheme was intended to ensure that work would be evenly distributed between members of that team;

(3) Mr Altounyan ignored this safeguard and subjected members of the team to an uneven work load. I pick up the judgment at paragraph 25:

"I am satisfied that Mr Altounyan in the summer of 1996 was acting contrary to the role of a reasonable employer in these respects. His actions were in breach of a reasonable duty of care. His demands were excessive. It was reasonably foreseeable that if that approach continued there could be repercussions in the form of the members of the team not being able to cope."

At paragraph 33:

"As at the second week of August 1996, it seems to me and I so find, that it is reasonably foreseeable that if he continues to behave like that, somebody is going to crack. Bearing in mind that the Claimant had three disciplines and the rest had two, that she was a woman and the rest men, I would expect a reasonable man to have said: 'If this continues she will crack up'."

39. I agree with my Lord, Lord Justice Simon Brown, that that was not a legitimate conclusion to reach. The agreed scheme was not intended as a safeguard to avoid overwork, but as a means of achieving greater efficiency. Had it not been for the particular susceptibility of Mrs Bonser, she would not have cracked up. There was no basis upon which the judge could have properly reached the conclusion that this risk should have been apparent. Accordingly, the vital element which had to be established in this particular tort was not properly demonstrated on this occasion.

Order: Appeal allowed with costs here and below.